Thursday, June 28, 2007

More "Grutter-ization" of Schools

Jack Balkin joins the growing crowd of voices who, in trying to make sense of Justice Kennedy's pivotal concurrence, have labeled it an extension of Grutter in elementary and secondary schools. He also notes that Kennedy is in some ways an unlikely proponent of Grutter:

"Grutter becomes the model, if not in the plurality opinion, then in Justice Kennedy's...And that is quite interesting, precisely because Kennedy himself did not join the majority opinion in Grutter. In one stroke he has signalled that he is more or less on board with Grutter. That is good news for people who were worried that all affirmative action policies were now in danger following Justice O'Connor's retirement. Kennedy may not uphold the next affirmative action policy that comes before the Court. But his position on affirmative action is not the same as the plurality's, much less that of Justice Thomas."

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